Better Building: The Responsible Developer's Blog : Northwest Construction Lawyers & Attorneys : Foster Pepper Law Firm : Sustainable Building & LEED Projects in Seattle & Spokane, WA

EHB 2805, which was recently signed into law by Governor Gregoire, requires contractors on various Washington public works projects estimated to be over $1 million (certain project are exempt) to report information regarding certain off-site, prefabricated, non standard items produced outside of the state of Washington. The information must be provided as part of the contractor’s affidavit of wages paid form. The requisite information includes: (1) the estimated cost of the public works project; (2) the name of the awarding agency and the title of the project; (3) the value of the off-site, pre-fabricated, non-standard project specific items produced outside the state of Washington; and (4) the name, address, and federal employer identification number of the manufacturer of the off-site, pre-fabricated, non-standard project specific items. To review the bill, click here.

Contractors
The teeth behind the new law is that a contractor’s repeated failure (more than once) to provide this information means the contractor is not “responsible”, which would preclude the contractor from bidding on other projects.

Public Owner Requirements
Public agencies must put the reporting requirements in their bid documents. Requisite form language is found at the General Administration Office website, by clicking here.

Questions?
Various questions are addressed on Labor and Industries’ website including, What projects are exempt? When does the law go in effect? What happens to contractors and subcontractors who do not comply with the new law? Click here.
 

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I’ve been thinking a lot lately about the relationship between green building and sustainable development.  “Green” and “sustainable” are often used interchangeably when talking about responsible development, but they aren’t always synonymous.  While a “green” building may have achieved a significant reduction in energy consumption, it might not be a good example of “sustainable” development.  Green buildings and the efficiencies they create cannot really be considered sustainable unless they also address the broader impacts of development.  For example, an otherwise green building may actually generate a high carbon footprint if its occupants have to make a long daily commute, all alone in their cars, to get there.

Architects Joshua Prince-Ramus, Randolph Croxton and Tuomas Toivonen agree that “green building” alone is not sufficient to achieve a meaningful reduction in our ecological footprint.  In a recent article, they suggest that maximizing the existing infrastructure in our urban cores must form the basis of a sustainable future. As Prince-Ramus puts it, “urban living itself is the embodiment of sustainability.”

In addition to increasing urban density, Prince-Ramus and his co-authors present several other strategies that can be implemented to incentivize growth and development while reducing our overall carbon footprint, including the use of urban growth boundaries, transferrable development rights, community-based metrics of sustainability, and the development of more flexible urban structures that can accommodate a variety of uses.  While these aren’t necessarily new concepts, Prince-Ramus suggests that perhaps they should play a larger role when considering the overall impact of a project’s design – so that in addition to “greening” the technical aspects of design and construction, the development itself can help to positively change human behavior.  In other words, truly sustainable development requires a holistic approach, one that incorporates systemic solutions such as increasing density, limiting sprawl, and changing our automobile-centric ways.

Do you agree with Prince-Ramus and his colleagues?  What long-term strategies do you think will be most effective in reducing our ecological footprint while encouraging responsible development?
 

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In a precedent-setting opinion,¹ the Ninth Circuit Court of Appeals has ruled that stormwater runoff from logging roads that is collected in ditches, culverts and channels and discharged to surface water requires a water quality discharge permit.² While this case involves stormwater discharges from logging roads, the Court’s decision could affect other activities that rely on regulatory exemptions from the discharge permit requirements.

The timber industry and the EPA argued that (1) the Silvicultural Rule³ exempts logging road discharges from discharge permit requirements and (2) discharges were exempt under the 1987 amendments to the federal Clean Water Act. The Court rejected both arguments, relying on the broad definition of the term “point source” in the federal Clean Water Act, which regulates discharges from discrete or channeled conveyances. The Court also found that the lack of a specific statutory exemption for logging road stormwater runoff within the point source definition precluded exempting road runoff from permit requirements. Because the Court ruled that logging road runoff was an industrial activity regulated under the 1987 Clean Water Act Amendments, it declined to delay issuing its ruling.

The Court’s decision effectively eliminates the Silvicultural Rule for most logging road runoff, except for unchanneled “natural runoff,” which is not a “point source” discharge. This is the latest case to invalidate EPA rules exempting certain activities from permit requirements. In 2009, the D.C. Circuit invalidated the EPA rule exempting pesticide residue from permit requirements.⁴  In 2008. the Ninth Circuit invalidated the EPA rule exempting sewage discharges from vessels.⁵

The breadth of this decision is likely to affect other activities that either rely on EPA regulatory exemptions or involve activities that typically have not required discharge permits. The case is virtually certain to lead to additional litigation in this area.

If you have any questions, please contact Lori Terry Gregory (206.447.8902) or any lawyer in Foster Pepper’s Environmental Group.

¹  Northwest Environmental Defense Center v. Brown, __ F.3d __, 2010 WL 3222105 (9th Cir. August 17, 2010), available at http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/07-35266.pdf
²  The water quality permit at issue in this case was a National Pollution Discharge Elimination System (NPDES) Permit, which is required for discharges of pollutants from a point source into surface waters.
³  40 C.F.R. § 122.27.
⁴  National Cotton Council of America v. EPA, 553 F.3d 927, 940 (6th Cir. 2009)
⁵  Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008).
 

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Environmental Leader reports that in five years the total US green building market value is projected to increase from $71.1 billion to $173.5 billion. This represents a Compound Annual Growth Rate (CAGR) of 19.5%. The commercial green building segment of this market is expected to increase from $35.6 billion to $81.8 billion. According to the report, this surge in green building has the potential to create 2.5 million American jobs, about a 30% increase in jobs within the construction industry.

This remarkable surge of green building activity will be accompanied by a surge in the risks associated with green building. As discussed in some of our prior blogs, the key to managing these risks is to contract carefully and make sure that expectations are defined and responsibilities for those expectations are specifically assigned to the parties in the contract documents. To address some of these risks, the insurance industry offers some niche coverage for green building projects. For example, Chartis Insurance offers "green reputation coverage", designed to address the threat or reality of adverse publicity when a building fails to meet green industry standards. Coverage includes access to crisis consultants and a range of other services to mitigate adverse publicity. Chartis also offers "green indoor environment coverage", providing coverage for bodily injury claims resulting from specialized equipment and products used to improve air and water quality in green buildings.

Similarly, Fireman's Fund recently began offering a five percent discount to policyholders with Energy Star buildings, and offers "green financial incentive coverage" for policyholders that paid for green improvements to their property with help from a tax incentive or financial grant and then suffered a loss when the building did not achieve the targeted rating and the policyholder is obligated to return the benefit received. These coverages are described in more detail in an article from Rueters.

Careful contracting and thoughtful insurance coverage will help reduce the risks and enhance the benefits of green building for all contracting parties and end users as green building in public and private construction continues its exponential growth.

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